The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No.379 of 2018 Sunita Kumari Bijay Kumar Singh Versus --------- ..… Appellant .....Respondent CORAM: Hon’ble Mr. Justice Rongon Mukhopadhyay Hon’ble Mr. Justice Deepak Roshan For the Appellant For the Respondent --------- : Mr. Sudhanshu Kr.Deo, Adv. : Mr. Pankaj Kumar, Adv. Mr. Saibal Mitra, Adv. --------- 11/25.07.2023 Per Deepak Roshan, J, The instant appeal has been preferred against the judgment and decree dated 21.08.2018 & 12.09.2018, respectively, passed by the learned Principal Judge, Family Court, Deoghar in Matrimonial (Divorce) Suit No.28 of 2011 filed under Section 13(1) (i-a)(i-b) of the Hindu marriage Act for dissolution of marriage; whereby the suit filed by the petitioner-appellant was dismissed. 2.
Legal Reasoning
Mr. S. K. Deo, learned counsel for the appellant submits that the learned Family Court has not taken judicial notice that the admitted case of appellant/petitioner is that the appellant/petitioner and the respondent are living separately since the year 2001 on different place/roof for about more than 17 years, but the learned family court has dismissed the divorce case in very mechanically manner. Further the marriage of the petitioner was solemnized with the respondent on 29.06.1985 according to Hindu rites and customs, and after birth of two sons namely Vikram Vikash (born on 03.09.1986) and Sumit Sagar (born on 19.01.1989) in the year of 2001; the respondent deserted the petitioner as well as her minor sons and not maintained them till disposal of divorce suit dated 21.08.2018. Anyhow the petitioner provided education to her children (both sons) and the respondent has no role. Learned counsel for the appellant/petitioner further submits that the respondent has failed to prove the plea of 2 adultery against the appellant/petitioner. Mr. Deo lastly submits that after allowing the petition u/s 24 of Hindu Marriage Act, the respondent has not paid any amount under this order and filed a writ application before this Court and subsequently withdrew the writ application with assurance that both are ready to file divorce with mutual consent u/s 13(B), but the respondent misled this Court and he was not ready to sign the petition filed by the petitioner/appellant before the Family Court, Deoghar. Relying upon the aforesaid submissions he submits that the judgment and decree dated 21.08.2018 & 12.09.2018, deserves to be set aside. 4. Mr. Pankaj Kumar, learned counsel for the respondent submits that the respondent entered his appearance and filed the WS broadly denying the claim of the appellant/petitioner. However, the Marriage between the parties and birth of their two children was admitted. It has been denied by the respondent-husband that the appellant-petitioner had already passed Teacher’s Training Examination at the time of her marriage or that, any cash or ornaments were given at the time of her marriage or that, he had subjected the petitioner to cruelty in connection with demand of dowry. He alleged that, reputation of his family was at stake due to the immoral and extra marital relationship between the petitioner and his unmarried brother, Rabindra Kumar Singh. Learned counsel has admitted that both husband and wife have shifted to Delhi in the year 1999 and was struggling hard to find a job. He contended that it was the petitioner, who had herself willfully left the residence of the respondent in his absence to live with his brother, but the respondent kept quiet for the sake of social reputation of his family and ultimately, he came back to his home village. He lastly submits that no error has been committed by the learned family court as such, the instant appeal deserves to be 3 dismissed. 5. Having heard learned counsel for the parties and after going through the documents/depositions available on LCR, it appears that the marriage of the appellant/petitioner was solemnized with the respondent on 29/06/1985 according to Hindu Rites and Customs at village Kushiyari Bosi, District Bhagalpur (now, District Banka). The appellant/petitioner after the marriage, went away to her matrimonial home and her marriage was consummated. Out of the wedlock, the couple was blessed with two sons, namely, Vikram Vikash (born on 3.9.86) and Sumit Sagar (born on 19.1.89). It has been alleged by the appellant that after the birth of her children, the respondent and his family members began to torture her in inhuman ways in connection with demand of dowry, though at the time of her marriage sufficient dowry in terms of cash, ornaments and other house hold articles were already given to the petitioner. It was further alleged that the father of the petitioner failed to fulfill the demand of a car and Rs 40,000/ in cash and for this reason, appellant/petitioner was subjected to cruelty by the respondent and his family members. Thereafter, the respondent took them to Delhi in the month of July 1999 and they lived there for some time in a rented house at Raghubir Nagar. It further transpires that the respondent was unemployed and was earning his livelihood by taking tuitions. The younger brother of the respondent, namely, Rabindra Kumar Singh, who was also residing at Delhi at that point of time, used to give her financial help. It is further evident that the appellant wife left the house of the appellant at Delhi along with her two children in the month of February 2001 and thereafter went to Uttam Nagar, New Delhi to take shelter in the house of respondent’s brother, Rabindra Kumar Singh, who helped her in continuing the education of her children and also provided her food and shelter. 4 6. The learned family court after hearing the parties made following issues: (i) Whether the suit as framed is maintainable or not? (ii) Whether there is a valid cause of action for the suit? (iii) Whether the respondent has deserted the petitioner? (iv) Whether the respondent has treated the petitioner with cruelty? (v) Whether the petitioner is entitled to get relief/reliefs as prayed for? 7. After going through the evidence of both the parties it is evident that so far allegation of physical cruelty against the respondent-husband is concerned; it is very general in nature, inasmuch as, there is a vague statement that the appellant was subjected to cruelty on many occasions. However, there is categorical finding of family court that she never made a complaint before any police station regarding the assault on herself or on her children. As a matter of fact, the evidence does not disclose any act of physical cruelty of such a nature that it was harmful and injurious for her to live with the respondent-husband. It further appears that the appeal was filed under Section 13(1) (i-a) (i-b) of the Hindu Marriage Act for dissolution of marriage on the grounds of cruelty and desertion. However, from the deposition it appears that the appellant herself admitted in her cross-examination that after she was ousted by her husband, she went to Uttam Nagar, New Delhi where Rabindra Kumar Singh provided her food and shelter and he also took care of education of her children and that she came back to Deoghar in the year 2004. At this stage it is pertinent to mention here that it has not been proved that the appellant was ousted by her husband; rather it has been proved that she along with her two sons left his home along with her two children in the month of February 2001 and thereafter went to Uttam Nagar, 5 New Delhi to take shelter in the house of respondent’s brother, Rabindra Kumar Singh, who helped her in continuing the education of her children and also provided her food and shelter and this continued till 2004. Thus, by no stage of imagination it can be said that the appellant-wife was subjected to cruelty by her husband. 8. It also appears from the deposition of the appellant that she herself was responsible for desertion due to her quarrelsome nature and in some way or other wished to live with the younger brother of the respondent namely Rabindra Kumar Singh. As a matter of fact, the appellant had admitted in her evidence that when she was ousted by the respondent- husband she went to Rabindra Kumar Singh and lived with him. It has also come on record by way of cross-examination of the appellant that she did not agree to file a joint petition for divorce on mutual consent as respondent was not ready to give Rs.30 lakhs towards settlement of permanent alimony; though admittedly; both the parties are living separately for last more than 20 years. It is reiterated that the deposition of appellant herself clearly transpires that she was responsible for desertion and the respondent-husband did not make any act of such a nature which would amount to cruelty. It is true that when the respondent-husband was residing at Delhi he was unemployed and that might be the reason that the appellant-wife left her husband and started living with his younger brother Rabindra Kumar Singh along with her two children. As a matter of fact, in the instant case there is not even a single averment in the plaint to the effect that appellant/petitioner was any time willing to fulfill the duty of marriage and the desertion was caused due to husband. 9. From the facts as stated hereinabove and the deposition adduced by both the parties, it can be safely held that the appellant/petitioner has failed to prove cruelty as 6 against her or desertion. So far as issue of permanent alimony is concerned which has come on record that the respondent- husband was directed to pay Rs.3,000/- per month to the appellant/petitioner as ad-interim maintenance under Section 24 of Hindu Marriage Act and Rs.10,000/- as litigation cost. The aforesaid order was challenged by the respondent- husband before this Court vide WPC No.1723 of 2012 which was ultimately dismissed as withdrawn. As such we refrain ourself from giving any opinion on the question of permanent alimony and the appellant-wife would be at liberty to raise the same before the competent court. 10. As aforesaid, since the appellant-Wife had failed to satisfy us on the question of cruelty and/or desertion, no interference is required with the impugned judgment which is hereby sustained. As a result, the instant appeal stands dismissed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Fahim/